Volume 9, Issue 1. March 2003
ISSN 1173-5376
Editorial
Conditions on use of Official Information
In many cases, where Ministers or departments or organisations refuse requests for official
information, a concern is not so much disclosure to the requester but the future use to which they
believe the information might be put.
There is often a mistaken view that the Official Information Act (OIA) does not allow an agency
holding official information to impose conditions on the use of official information made available
under the OIA. Put simply, many agencies believe that once official information is made available
under the OIA then there is no restriction on how the requester can choose to use it.
However, s28(1)(c) of the OIA identifies that one of the functions of the Ombudsmen is “to
investigate and review any decisions by which a department or Minister of the Crown or organisation
imposes conditions on the use, communication or publication of information made available pursuant
to a request made in accordance with s12”.
This provision recognises implicitly that in certain situations it may be reasonable to refuse to make
available certain information unless the requester agrees to specific conditions on the “use,
communication or publication” of that information. Equally, it recognises that in certain situations
concerns about the outcome of disclosing official information may be met by imposing conditions on
how the information is used.
A common example is where researchers are granted access to official information on conditions that
they cannot communicate or publish any of that information to third parties without the express
permission of the agency holding that information.
Whether it is reasonable to impose conditions on the use of official information depends on the
circumstances of each case, but there are two main considerations:*
It must be established that there is good reason under the OIA to refuse the request if there
were no conditions imposed. The imposition of conditions cannot be utilised as a means of
restricting access to information where no good reason for refusal otherwise applies; and
*
the department or Minister or organisation concerned is entitled to query whether it is
practicable to impose conditions and whether there is sufficient assurance that they will be
honoured or can otherwise be enforced. Even though the OIA does not require requesters to
state the purpose for which they are seeking the information, it may be to their advantage to
clarify their purpose so that the option of release subject to conditions can properly be
considered.
In our experience, the option of making information available subject to conditions on its use is often
overlooked in cases where it may have resolved concerns about wider disclosure.
Sir Brian Elwood
Chief Ombudsman
Anand Satyanand
Ombudsman
Mel Smith
Ombudsman
Sir Brian Elwood is to retire
Sir Brian Elwood is retiring as Chief Ombudsman in April, after a
career spanning 35 years of public service. He was appointed as an
Ombudsman in 1992 and Chief Ombudsman in 1994.
A barrister and solicitor in private practice, Sir Brian was first elected to the Palmerston North
City Council in 1968 and became the city’s mayor, serving from 1971-1985.
He has served on many public bodies including as chairman of the Manawatu United Council,
a member of the Wellington Harbour Board, Commissioner for the Wellington Area Health
Board and a member of the Massey University Council.
Sir Brian was an executive member of the Municipal Association of New Zealand from 197485 and its president from 1976-79.
He moved to the capital in 1985 on being appointed chairman of the Local Government
Commission, responsible for the major reform of local government in 1989. He received
international recognition for his achievements in local government administration and reform.
Sir Brian was elected President of the International Ombudsmen Institute, the professional
body of Ombudsmen around the world, a post he held from 1999 to 2002. In 1994 he became
a director of the Institute, representing the Australasian and Pacific Ombudsmen.
Sir Brian received the Queen’s award of Knight Bachelor in 1990 for services to local
government and New Zealand and an Honorary D.Litt. from Massey University in 1993.
Prejudice to the maintenance of the law
If information held by the Police “would be likely to … prejudice the maintenance of the
law”, under s6(c) of the Official Information Act (OIA), there exists “good reason” for the
Police to withhold it.
An approach was made to the Ombudsman for access to Police information from an
investigation into alleged threats made against a judge.
The Ombudsmen consider the identity of an informant as “personal information” to the
person who is the subject matter of the information and therefore a matter to be investigated
by the Privacy Commissioner. Information about other people is “official information” and
thus a matter to be investigated by an Ombudsman.
In this case, the information related to the requester and members of the requester’s family.
Thus it was a mixture of “official information” and “personal information” requiring
investigation by both the Privacy Commissioner and the Ombudsman.
Successive Ombudsmen have accepted that statutory law enforcement agencies rely heavily
on the public for assistance, and that much of this information is supplied on a confidential
basis.
In this case, the Privacy Commissioner and the Ombudsman agreed that releasing the
information would be likely to reveal the identity of the informant, jeopardising the continued
supply of information from the public and thereby prejudicing the maintenance of the law.
A question of existence – to neither confirm nor deny
Sometimes wanting to know about just the existence of information can bring a “neither confirm nor deny”
response under s10 of the Official Information Act (OIA).
Such a response is appropriate if public knowledge about the existence or non-existence of information would be
likely to lead to a specific harm or prejudice that other particular provisions of the OIA – s6, s7 and s9(2)(b) – are
intended to protect.
The Overseas Investment Commission (OIC) was asked for information on whether it had received from overseas
interests any applications for consent to acquire some specified property. The request was refused under s10
because release of the requested information would be likely unreasonably to prejudice the commercial position
of the party(ies) who might have supplied the information or be the subject of the information – s9(2)(b)(ii).
The OIC explained that information about either the existence or non-existence of an application under the
Overseas Investment Act 1973 was commercially valuable and needed to be protected until such time (if ever)
that OIC received and decided upon an application.
This was because if, in response to an initial enquiry, the answer were given that no application had been
received, any subsequent “neither confirm nor deny” response – in the event that an application had since been
received – would nevertheless be a strong indicator that such an application then existed. Protection of this
information would then be lost.
Application for consent under the Overseas Investment Act can be received by the OIC in advance of the market
or even of the vendor being aware of the applicant’s interest in the asset.
Knowledge by any interested party about either the presence or absence of a (or another) potential purchaser of an
asset is an important market indicator that can affect its sale price. Depending on circumstances, such information
might therefore prejudice the commercial position of either the prospective vendor or potential purchaser.
In this particular case, the Chief Ombudsman accepted that the interest protected by s9(2)(b)(ii) would be likely to
be prejudiced by disclosure of information about the existence or non-existence of any consent application and
that s10 therefore applied.
If s10 is to be applied properly it is only necessary to be satisfied that there is an interest to be protected by virtue
of s6, s7 or s9(2)(b). There is no requirement to consider whether there is a countervailing public interest in
disclosure that outweighs the reasons for withholding.
Electricity Complaints Commissioner
Jurisdiction over private prisons
The jurisdictions of the Ombudsmen and the Electricity
Complaints Commissioner overlap on complaints about the
three State-Owned Enterprises (Genesis Power Limited,
Meridian Energy Limited and Mighty River Power Limited)
and their related companies (currently, Mercury Energy and
First Electric).
Privately-managed prisons are within the
responsibility of the Ombudsmen, although they do
not usually have jurisdiction over matters involving
private companies.
The function of the Electricity Complaints Commissioner is to
resolve complaints by consumers about the provision of energy.
Complaints are received periodically from inmates
at the Auckland Central Remand Prison which is the
country’s first privately-managed prison, run by
Australasian Correctional Management Ltd.
It has been agreed with the Commissioner that where the
Ombudsmen receive a complaint about matters within the
normal functions of the Commissioner about any such entity,
the complainant will be advised of the Commissioner’s powers
and that the Commissioner should be their first point of
reference.
Section 41C(1) of the Penal Institutions Act allows
for this: “For the purposes of the Ombudsmen Act
1975 and the Official Information Act 1981, every
contract penal institution shall be deemed to be part
of the Department of Justice.”
If this does not resolve the matter, then the complainant retains
the right to approach the Ombudsmen, and the Commissioner
will advise a dissatisfied complainant of their right to complain
to an Ombudsman.
Ombudsmen investigating staff make regular visits
to this prison as they do to those prisons run by the
Public Prisons Service.
A legal person’s right to personal information
A legal person – a body corporate – has a qualified right of access to personal information about itself
under Part IV of the Official Information Act (OIA) - s24 - in much the same way as a natural person
has this right under the Privacy Act.
Accordingly, a legal person has the right to request a correction of its personal information if it
considers that this is inaccurate or incomplete, and gives a misleading impression – s26.
Section 35 of the OIA authorises an Ombudsman to investigate a decision made under Part IV of the
OIA, including a refusal of personal information (s27), or a failure by the information holder either to
correct that information or at least to notate it with the nature of any correction requested but not
made.
However, s35 provides that such an investigation is to be conducted under the Ombudsmen Act 1975
(rather than under the OIA). This means that if the Ombudsman comes to a view in favour of the
complainant, no public duty to observe any recommendation made will arise as happens with a formal
recommendation made under the OIA.
A recent complaint involved a company whose day-to-day dealings with a government department had
been impaired significantly because the department had received adverse allegations about the
company. The department had released to the company the nature of these allegations but refused to
reveal the identity of the person making them.
In the event, the Ombudsman upheld the department’s decision to refuse to reveal the identity of the
informant on the grounds that disclosure would be likely to prejudice the maintenance of the law; and
if the department could not protect its sources, then in similar circumstances information on possible
offences would be likely to dry up.
Use of “Released under the OIA” stamp
On occasion, holders of official information
provide documents to a requester photocopied
onto paper that has been pre-printed with the
stamp
“Released Under
The Official
Information Act” to indicate that the release of
the information was intended, and was not an
unauthorised leak.
Where an Ombudsman conducts an investigation
into a complaint of withholding official
information, the Ombudsman will require a copy
of the information at issue. A recent trend has
been for documentation to be provided with each
page marked with the stamp.
The use of the stamp in these circumstances is
liable to mislead. The information will have
been provided to the Ombudsman pursuant to
s19 the Ombudsmen Act.
However, it might appear as if such
documentation has been released following a
request under the OIA, whereas it has only
been released in confidence to the Ombudsman.
This confusion may result in the information
being disclosed subsequently by mistake by the
information holder’s staff in response to further
requests for the same information.
The Ombudsmen suggest that the use of the
stamp be restricted to papers which have been
released formally to a requester under the OIA.
A further problem can be that holders
sometimes use a form of block stamp on
released official information which obscures
the text on the page. The use of the stamp must
never be such as to affect the legibility of the
document.